Negligence in the Nursing Home Setting

Some signs of nursing home neglect may include: unexplained bruises or other relatively minor injuries, depression, withdrawal, weight loss, poor hygiene and general lack of cleanliness in the facility. More important, in cases of neglect or abuse, nursing home staff and administrators are often evasive when questioned. If you need to know the truth, an experienced attorney can help. Contact us.

A nursing home is generally a facility that provides shelter, food and care for the sick, elderly or infirm. Different terms are used in case law to describe a nursing home facility, such as: rest home, hold age home, convalescent home, special care facility, assisted living facility or retirement facility. Nursing homes are often thought of as facilities for the elderly, generally, an elder is someone 65 years of age or older. While it is true that a majority of residents in nursing homes are elderly, residents may be a person of any age who is dependent either mentally or physically for care. Although these care facilities provide health care by trained professionals, they are not hospitals and may have different requirements according to state and federal law. A common state or federal requirement is that nursing homes must provide a general standard of care based on what similar caregivers and facilities provide in the community. Facilities that do not meet this general standard of care may be liable for violation of state and federal negligence laws. If you or a loved one has been harmed while a nursing home resident, contact an attorney at Burke Harvey, LLC in Birmingham, Alabama for advice about protecting your legal rights and seeking recompense for injury.

Standard of Care / Negligence Per Se / Ordinary Negligence

In addition to the general standard of care, state and federal law have requirements for nursing home facilities and that protect against mistreatment or abuse of residents. The Older Americans Act defines elder abuse, neglect and exploitation. The definitions in this act set a framework for states to follow when identifying elder abuse. Three types of abuse in the act are as follows: self-neglect or self-abuse (which is impairing one’s own safety), domestic abuse (committed by a person who has a special relationship with the individual) and institutional abuse (exploitation and mistreatment). The main type of abuse identified in nursing home injuries is institutional abuse. This abuse can be emotional or physical. Emotional abuse is an intentional act that causes emotional pain to another. Some examples may be yelling at a resident, threatening physical abuse, isolating or insulting a resident and denying food or privileges as a form of punishment. Physical abuse may consist of injuries such as bodily harm, malnutrition, bedsores, poor hygiene and deprivation of medical care. Physical injuries often lead to a claim for negligence.

A nursing home or healthcare facility must exercise reasonable care to avoid injury to their patient’s physical and mental state. Such a facility has special knowledge of resident ailments and must respond accordingly to prevent further harm. If reasonable care or prevention is not given, a facility may be held liable. Additionally, a nursing home may be held liable for injuries caused by negligence of an employee. This includes negligence acts of an employee, negligence supervision of employees, negligent hiring, employee retention and maintenance of facilities and equipment. If there has been an injury due to negligence, residents and/or their families may have a claim against the care facility for institutional elder abuse through negligence per se and ordinary negligence actions. For negligence per se claim, the plaintiff must belong to a class of individuals protected by statute. Violation of the statute is negligence as a matter of law. State and federal statutes lay out the minimum standards of care that a nursing home must abide by in regards to caring for their patients, facilities and supervision and hiring of employees. If these standards are not met, there may be a claim for negligence per se.

To have a claim for ordinary negligence, four elements must be met: 1) the nursing home has a duty to the resident (this may often be through contract), 2) the nursing home has breached this duty (deviation from the statutory or contractual standard of care), 3) the breach has caused the resident’s injury (the injury was caused by the defendant or would not have occurred but not for the defendant’s action) and 4) the patient suffered damages (damages may include: healthcare expenses, pain, suffering, mental anguish and a diminished capacity to enjoy life).

Nursing Home Requirements and Claims

Nursing home facilities are required by federal law to screen potential employees and do a criminal background check prior to hiring them. State and federal regulations for long-term care facilities place minimal requirements for nursing homes and their employees. Along with these minimal requirements, most states also have regulations that provide for periodic inspections of facilities, mandatory reporting or abuse or neglect and employee licensing criteria (42 CFR 483.1 et seq). Some additional state requirements may include minimum hours of skilled care per patient per day, special prerequisites for nurses and aids and not hiring employees who have been previously found guilty of neglect, mistreatment or abuse by the court of law. If a nursing home facility does not abide by state or federal regulations regarding resident care, employee standards and maintaining facilities and equipment, they may be liable of negligence per se or ordinary negligence. In addition to negligence, some other claims may be Premises Liability (A resident may be considered an invitee. The facility would owe the invitee a duty of care to keep the premises safe. So a facility may be liable for an injury caused by an unreasonably unsafe condition on the premises.), Inadequate Security (There may be neglect if an injury is caused by inadequate staffing, understaffing or inattentive staffing.), Medical Malpractice (A facility may be liable for a medical error in providing care by a trained professional.) and Wrongful Death (A facility may be liable from a death due to negligence, abuse or injury caused at a facility or due to the employees.). If you or a loved one has been harmed while a nursing home resident, contact an attorney at Burke Harvey, LLC in Birmingham, Alabama for advice about protecting your legal rights and seeking recompense for injury.

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